Deep Divide Apparent as Supreme Court Considers Voting Rights Act


A challenge to the landmark Voting Rights Act came under intense scrutiny from the Supreme Court’s liberal wing during oral arguments Wednesday (February 27). At the same time, more conservative members and Chief Justice John Roberts expressed deep skepticism that the key provision being challenged remained necessary decades removed from the racially motivated voter discrimination then rampant in the South.

The main question before the court, as Stateline previously reported, is whether the act’s Section 5 provision, which requires all or part of 16 states to get any changes to election law pre-approved by either the Justice Department or a federal court, is still necessary and constitutional in today’s world. The preclearance requirement, as it’s known, was enacted as part of the broader Voting Rights Act to target areas of the country where racial discrimination was of most concern and conventional lawsuits and countermeasures to voter disenfranchisement were seen as insufficient.

Even before it was enacted, the requirement was controversial, in part because it gave the federal government extraordinary power over certain states. The measure was intended to be temporary, which also further motivates critics, but Congress has renewed it multiple times over the years, most recently in 2006.

Justice Sonia Sotomayor made her position known quickly, interrupting attorney Bert Rein, representing Shelby County, Alabama, which brought the challenge, early in his arguments to question why an area with a record of recent disenfranchisement concerns thought it could make the case that the entire preclearance requirement was no longer needed.

“Your county pretty much hasn’t,” Sotomayor said in response to Rein’s argument that “the South had changed” and therefore racially motivated voter discrimination was no longer an exceptional concern there. “You’re asking us to do something that is to ignore your record.”

Rein rejected that argument, saying the reality in Alabama today bears “no resemblance” to the conditions present when Congress first enacted the Voting Rights Act in 1965.

“It’s an old disease,” Rein said, referring to racism and voter discrimination, “and that disease is cured.”

Later in the arguments, that question of whether concern over racially motivated discrimination was still strong enough to justify the law took center stage. Chief Justice Roberts was among the first justices to express his skepticism. In 2009, Roberts wrote an opinion upholding the preclearance requirement in an 8-1 decision that also voiced deep constitutional concerns about the law, a ruling that some said paved the way for the challenge before the court today.

“Things have changed in the South,” Roberts famously wrote at the time.

On Wednesday, it seemed little had changed in Roberts’ thinking. As Solicitor General Donald Verrilli argued in favor of the law, Roberts repeatedly made reference to the fact that many areas outside of the Section 5’s coverage area are no better or even worse by some measures than those subject to preclearance. He referenced the fact that Massachusetts has the worst disparity in white and black voter turnout, and that Mississippi has the best.

“Is it the government’s submission that the citizens in the South are more racist than the citizens in the north?” Roberts asked.

Verrilli said no, but added that when Congress reauthorized the law in 2006, extending the preclearance requirement for another 25 years, that lawmakers decided it was still necessary and relied on an extensive 15,000-page record showing lingering discrimination, the proportion of non-white officeholders in covered areas and turnout trends to justify the measure.

“The question was whether times had changed enough,” Verrilli said. The answer, he and the court’s four liberal members (Sotomayor, along with justices Stephen Breyer, Elena Kagan and Ruth Bader Ginsburg) seem to reach was that they hadn’t.

“It’s an old disease. It’s gotten a lot better, a lot better,” Breyer said. “But it’s still there.”

“This is a question of renewing a statute that indeed has worked,” he added.

Still, it was clear there was opposition to the measure on the court. Justice Antonin Scalia was hostile to the measure, positing that it passed with such overwhelming majorities in 2006 (the vote was 98-0 in the Senate) only because members of Congress were afraid to vote against such a racially charged measure.

“I am fairly confident this will be reenacted in perpetuity,” Scalia said, adding that Congress would continue what he called a “perpetuation of racial entitlement” at the heart of Section 5.

“The concern is that this is not the kind of question you can leave to Congress,” he added.

Later, that drew a strong, if indirect, rebuke from Sotomayor, as she asked Rein during his rebuttal whether he thought, “the right to vote is a racial entitlement?” Rein said no, but rather that it was right for all citizens.

Ultimately, the challenge is likely to come down to the swing vote of Justice Anthony Kennedy, who asked a handful of questions during the arguments but didn’t seem to tip his hand either way.

In discussing Section 5, Kennedy said it was “utterly necessary” in 1965, but that he was struggling to see why another provision of the law, Section 2, which gives the government and individuals the right to challenge voting laws in court, was insufficient to address discrimination.

Opponents of Section 5 say challenges brought under Section 2 are enough to block measures that might disenfranchise voters, but others say they often aren’t responsive enough to block measures enacted close to Election Day or other quick-changing provisions because of the time it takes the challenges to work through the courts.

The court is expected to issue its decision by the end of its term this summer.


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